Thursday, February 08, 2007

Interesting Developments at C.A.A.F.

I am told by my friends at the Air Force and Navy Appellate Defense Divisions that February 7, 2007 was an interesting day at the Court. The Court ordered the government to show cause in Greska v. United States. The writ, originally captioned Greska v. Air Force Court of Criminal Appeals, seeks a writ of mandamus to the Air Force Court to prevent it from compelling counsel to disclose whether individual clients personally opposed enlargements. The writ also seeks mandamus to prevent the lower court from taking the case without counsel, after the court has denied a first or second enlargement. Following the Moreno decision last summer, the CCA's appear to have conspired to each change their rules to require disclosure of client communications and decline to accept attorney workloads as justification for enlargements of time. Their solution, and I am not joking, is to just take cases without counsel if counsel are working on other cases. Each of the Courts have now taken cases without briefs from the defense, saying that Moreno, apparently in footnote 10045, authorizes them to do so. The C.A.A.F. has invited all appellate and government divisions to file briefs as amicus curiae. I believe these amicus briefs, while not written by law students, may be granted.

The Court also granted review of an issue in United States v. Hollings, another issue centered around the liberal grant mandate. The 2007 term may not be remembered for the clipper's cow, but it will be remembered as the year of the liberal grant mandate.

All of this will be yours to digest for yourself when the C.A.A.F. updates the weekly journal.


CAAFlog said...

To quote Yogi Berra, it's deja vu all over again. Didn't CAAF already tell CCAs they couldn't do that in United States v. May, 47 M.J. 478 (C.A.A.F. 1998)? Is there some unwritten rule that CCAs have to try this and get shot down by CAAF at least once per decade?

Guert Gansevoort said...

The Navy Court of Criminal Appeals is citing May as authority for its actions.

CAAFlog said...

Well that's odd. Did NMCCA quote the following passage?

"[T]he court below simply decided the case without assistance of counsel. This was error."

United States v. May, 47 M.J. 478, 482 (C.A.A.F. 1998).

Citing May for the proposition that the court will decide the case without the assistance of counsel is reminiscent of the scene in Blazing Saddles where the sheriff takes himself hostage and threatens to shoot himself unless the town folk who are about to shoot him drop their weapons.

But I don't think the ending will be as happy for NMCCA as it was for Bart.

Here are a couple more passages from May that seem to preclude the CCAs' approach:

"Although Courts of Criminal Appeals have a broad mandate to review the record unconstrained by an appellant's assignments of error, that broad mandate does not reduce the importance of adequate representation. As we said in United States v. Ortiz, 24 M.J. 323, 325 (CMA 1987), independent review is not the same as competent appellate representation. An appellant who is denied counsel is forced to proceed 'without a champion on appeal.' Douglas v. California, 372 U.S. 353, 356, 9 L. Ed. 2d 811, 83 S. Ct. 814 (1963). Denial of appellate counsel is presumptively prejudicial. Penson v. Ohio, 488 U.S. 75, 88, 102 L. Ed. 2d 300, 109 S. Ct. 346 (1988)."

Id. at 481.

"Where, as in this case, appellate counsel do nothing, an appellant has been effectively deprived of counsel, and prejudice is presumed."


Jason Grover said...

Citing May for the idea that CCAs can take cases without counsel is no more strange than citing Moreno for the idea that attorney workload is not a factor to consider.

Fitzcarraldo said...

After the AFCCA denied several of my delay requests for failure to obtain client concurrence, I completed AOEs and submitted them out of time. I cited Moreno's "responsibility for this portion of the delay and the burden placed upon appellate defense counsel initially rests with the Government" language on the out of time requests. On Friday, the AFCCA granted two of those motions to submit AOEs out of time.